Fashion Industry Copes with Designer Knockoffs

By Rick Karr

Published September 17, 2003 at 9:00 PM PDT

Hermes' flagship "Birkin" bag, pictured above, is widely knocked off. A recent whimsical copy -- known as the "Jelly Kelly" -- recast the $5,000-plus bag in transparent rubber.

Hermes' North American CEO Robert Chavez, left, shows attorney Joseph Gioconda one of Hermes' creations, a lizard-skin biker jacket. Designs are difficult to protect in court, because they incorporate elements that are effectively in the "public domain."

Some clothing designers are watching this week's fashion shows in New York with an eye to knocking off their competitors' designs. Like the music industry, the fashion business is rife with unauthorized copying. But it's relatively free of infringement lawsuits like the ones the major record labels recently filed.

As NPR's Rick Karr reports: "If you find yourself attracted to, say, a handbag in an upscale Soho boutique but it costs too much, head a few blocks south to Canal Street. You'll probably find the design that caught your eye on a table on the sidewalk selling for a lot less: A knockoff of a $600 Prada bag, for example, goes for around 100 bucks."

Joseph Gioconda is an attorney with Kirkland and Ellis, a firm that represents the French design house Hermes. He's charged with keeping knockoffs of the company's bags, scarves and accessories off the street -- and the Internet, where a crude copy of a $5,000 Hermes "Birkin" bag might be had for less than $30.

As Karr reports, the risk of confusion is the key legal test of whether a knockoff has crossed the line to forgery. Under U.S. law, a company can't copyright a design, but it can register elements of that design as trademarks. If the shape of the bag's flap or the strap across the closure lead a likely Hermes consumer to think the knockoff is genuine, then it's pretty easy to convince a court that the fake violates Hermes trademarks.

That was the case recently when Hermes sued a retailer who was aggressively pushing a transparent rubber version of the Birkin bag.

But for most of the fashion industry, copying is a way of life. Francesca Sterlacci is head of the fashion design department at New York's Fashion Institute of Technology. She says it's expensive and risky to actually create new designs. It's cheaper and easier to simply knock off successful ones. Typically, Sterlacci says, designers just let the copies go. After all, new designs will come out in a couple of months, and lawsuits are time-consuming, expensive "and you're never really sure whether or not you're going to win," she says.